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Marty says, echoing Phil:
That is to say—and as Eric's closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all. Which is fine, I suppose. But as Phil has stressed, that's not the view of history and of all Western nations engaged in armed conflicts for centuries; ....
It's not really worthwhile, I think, to debate whether war and law are fundamentally incompatible, because that question was definitively resolved eons ago, and there's no constituency at all for reviving it (outside the academy, that is).
I agree that this debate is not worthwhile, which is why I am not a party to it. I never said that the war should not be governed by legal standards. I said that civilian judges should not administer those standards, at least not for routine decisions such as targeting and detention of enemy soldiers overseas. The debate is about the role of civilian courts in ensuring that the military complies with domestic law and the laws of war, not whether "the war should be governed by legal standards at all." That's why I keep trying to get Phil to tell us how far he wants the courts to go. If they should evaluate detention decisions, what other decisions should they evaluate, and so forth. What are the criteria for determining when civilian courts should be involved or not? What's so different about detention and targeting? My small point here, which has been blown out of proportion in the responses, is just the D.C. Circuit's disagreement with the military doesn't help answer these questions, so lends support to neither side's views with respect to the real, as opposed to nonexistent, debate.
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OK, so perhaps I went a bit overboard with the Ouija board metaphor. No, I do not think that the military's detention of the Uighurs was just random, or whimsical, or the product of consultations with the Easter bunny.
More to the point, I, too, accept Eric's assumption—for how could anyone deny it?—that "the U.S. military is more interested in advancing the security of the United States than that of its geopolitical rivals," and that such considerations are what drive its detention decisions. Of course that is the case. The Chinese haven't "conned" our military. We're doing the Chinese a favor—presumably because the administration believes that will redound to our national interests in the long term. And on top of that, we are incapacitating radicalized folks who just might present a danger to us one day, and/or who just might have some intelligence of value that we could extract if only we can use "enhanced" interrogation techniques on them during incommunicado detention over a long period of time.
From the military's perspective, if there is reasonable supposition that the Uighurs might be dangerous—say, a 1 percent chance—and further suspicion that they might, just might, have some intelligence value (say, another 1 percent chance), and if our favor for the Chinese here might result in a reciprocal favor on our behalf from Beijing ... well, then, why not detain them for six years? If that's all the executive branch had to consider—and if its views would never be subject to any review by any other entity (which was the administration's objective in choosing Guantanamo)—well, then, of course it would err on the side of suppressing virtually every possible threat, no matter how minor or how speculative.
And, if that were the relevant question here, then yes, it would be fairly unnerving to have the federal courts "make an all-things-considered judgment about the wisdom" of the military's decision.
So, it's a good thing that's not what the D.C. Circuit has been instructed to do.
Instead, the judges have been assigned to evaluate whether a preponderance of the evidence demonstrates that these are persons whom Congress has given the president the lawful authority to detain. The judges did not decide that it would not be "wise" to continue the detention—they determined that it would be illegal. If Parhat has not "supported" the ETIM; or if the ETIM is not functionally a part of the Taliban; or if the ETIM has not engaged in hostile action against the United States and its coalition partners; or if (as I've argued) the ETIM and Parhat would have to have a much closer and more direct connection with al-Qaida in order to bring this detention within the authority the AUMF grants ... well, then, in that case the president would not have the legal authority to detain Parhat—indeed, in my view, he'd be acting contrary to an implied limitation that Congress has established.
It was not very difficult, or outside their ordinary judicial function, for this panel of judges to determine that the Pentagon had failed to present any credible evidence on even the two easiest prongs of the Pentagon's own theory of why Parhat was detainable-that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.
Eric's view appears to be that such questions, while relevant, should hardly be determinative—that the only pertinent question ought to be whether the United States is better off with the Uighurs in captivity, or better off if we release them, "all things considered." And because judges can't possibly evaluate all the myriad considerations of national security in the way that military officials can, they should reflexively defer, unless they sniff the Easter Bunny lurking. That is to say—and as Eric's closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all. Which is fine, I suppose. But as Phil has stressed, that's not the view of history and of all Western nations engaged in armed conflicts for centuries; it's not the considered judgment of virtually every president, military commander, and public official we've ever had, from Washington on down; it's not the view of the courts; it's not Congress's view; hell, it's not even the view of the Bush administration, which conceded to the court that it was legally required, at a minimum, to have sufficient grounds for concluding that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.
It's not really worthwhile, I think, to debate whether war and law are fundamentally incompatible, because that question was definitively resolved eons ago, and there's no constituency at all for reviving it (outside the academy, that is).
Once one acknowledges that there is a legal standard that the Bush administration must satisfy in order to detain someone incommunicado for more than six years, it makes perfect sense for Congress (or the Constitution) to authorize federal courts to ask the executive to make at least a plausible showing that it has satisfied that legal test. In the case of the Uighurs, the Bush administration has failed that test miserably—which is "all" that Judges Sentelle, Garland, and Griffith quite understandably concluded.
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David, you're right that the solution of my logic puzzle does not imply that courts should defer to the military; it's equally consistent with the proposition that the courts should make detention decisions and the military should defer to the courts. It's also consistent with the idea that you get to decide whom to detain, and I should defer to you (fine with me)—and vice versa. So, I was making an extremely narrow point, which is that until one can show that one institution is more likely to be superior to another, the mere fact of their disagreement does not tell us which is which. That's the problem with Phil's claim that the D.C. Circuit panel's disagreement with the military in the Parhat case tells us anything new. You're right that Phil has other reasons for thinking that judicial review of military detentions is wise policy, but it wasn't my intention in that post to address those other reasons. My logic puzzle doesn't do much work—you're right!—but it does enough to refute a claim that is very common these days.
Marty does make a good point, however, which I will rephrase as follows. Suppose we learn from judicial review of military detention decisions that military officials rely on theories that are truly alarming. Perhaps they pray to the Easter Bunny for guidance and consult the entrails of slaughtered pigeons for indications of the Bunny's divine will. If this is what is going on, we are in big trouble, and not even the wisdom of the federal judiciary can save us. If the military is guided by the Easter Bunny in its detention decisions, then no doubt the Bunny also determines its targeting decisions, the movement of troops from place to place, the acquisition of new weapons systems, and everything else. So what next? We could place the entire military in receivership under the authority of judges, the way that poorly run prisons are, but so far not even Marty seems to want to do this. (Of course, if the judges tremblingly invoke the sacred name of Punxsutawney Pete, who rages at the military's devotion to a lesser deity, then we are back at square one.)
I can't tell whether Marty thinks that the military is idiotic in the Easter Bunny vein. Perhaps I misinterpret him, but he implies that the Chinese have conned the U.S. military into detaining the Chinese government's political opponents. Until I've heard more, I will continue to assume that the U.S. military is more interested in advancing the security of the United States than that of its geopolitical rivals. If my assumption is accepted, we just can't tell whether the military's reasons for detaining Parhat were too weak or the court's standard for detention was too strong—it all depends on how dangerous a person should be in order for the military to detain him and how much confidence the military should have about this person's dangerousness.
In the end, Marty doesn't rely on the court's view at all, which is why I didn't initially link to his post along with Phil's. He would think the same thing if the court had gone the other way (except he would rage against the judges as well as against the military for their Easter Bunny thinking). Marty thinks he can make an all-things-considered judgment about the wisdom of the military's detention of Parhat based on the facts that have been disclosed. I'm not so sure. Who are we to say whether the Chinese can be trusted in this instance? That said, the question whether judicial review of the operations of the military will improve or worsen decision-making from the perspective of national security and civil liberties can be answered only with—and here, David, I will cite your post contra Marty's—experience, albeit experience that has not yet occurred.
PS: I read the court to be saying that if it were just to accept the military's say-so, then it wouldn't have any role in evaluating detention decisions, which would conflict with Congress's intention to give it a role. That's unobjectionable as far as legal reasoning goes, to which I reply: so much the worse for Congress!
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Eric—I just played your logic game. It's fun. But here's my question: Why do you prefer the M-Box? After all, nothing in logic makes it any better than a C-Box. Both could be accurate, and both could be inaccurate. And yet, I see from your earlier posts that deference to the executive (the M-Box!) is one of your guiding principles. You must have not thought up the C-Box/M-Box game at the time. Or maybe you reached that conclusion because you think there's actually more than logic to this game, and that experience makes the M-Box better than the C-Box. But if that's so, then the M-Box/C-Box game isn't doing much work. There are those, like Phil (and now a majority of the court), who think, when it comes to detention practices, experience indicates there's a value in having courts look over the judgments of executives. And there are, of course, those who draw a different lesson from history. But I don't think it's a confusion over logic that explains the divide.
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Hi, Orin, the Supreme Court's role is modest on some fronts, yes—I agree that deciding that child rapists can't be executed is not of the same order as upholding the death penalty in the first place. Or that outlawing one method of late-term abortion isn't up there with Roe. But in other areas, the court looks bigger to me, and the disagreements worthy. Boumediene is my best recent example: Whether the Guantanamo detainees have the right to go to federal court matters enormously to them, and quite a lot to America's legal tradition and world image, I think. Heller is harder to tell, since it's like an opening bid that invites more challenges to gun restrictions, but it's not every day that a new constitutional right appears in our midst. And the knocking back of the punitive damages award against Exxon seems significant to me, for its own sake and because of the signal Justice Souter's opinion sends about potential limits to state punitive-damages laws. I often wonder if to write about the court is inevitably to hype its importance, and I like your impulse to knock it (and many of us) down a peg. But I'm glad the justices see more than small beans to fight over—Justice Scalia's rhetoric, as usual, being the best evidence of passion stirred.
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It's not a logic game, Eric—it's simply good, old-fashioned judicial review. The role of the "C-Box"—the court—is not to determine whether the detainee (not a "criminal suspect," by the way) is in fact telling the truth, but instead to determine (i) whether the "M-Box" is relying on a valid legal theory to detain the prisoner; and (ii) if so, whether there is any reason to credit the M-Box's conclusion that the detention satisfies that legal standard, even after giving quite a bit of deference to the M-Box-that is to say, to determine whether the M-Box decision is supported by a preponderance of relevant evidence.
You might recognize this—it's what courts do all the time in reviewing executive conduct and what habeas courts have done for time immemorial.
In this case, Phil is right: When there was no prospect of judicial review, the government could detain Uighur prisoners for more than six years, based on a shockingly broad theory of what Congress has authorized, and on flimsy supposition about the facts of the case. But as soon as a court is in the picture—even a court that included David Sentelle and Tom Griffith—and puts the government to the modest burden of, gosh, explaining its decision, it becomes clear very quickly not only that the administration is acting on the highly implausible view that Congress has authorized the indefinite detention of all the world's suspected terrorists (even those whose target might be China), and not only that the military assumes that attending a Uighur training camp makes one a member or supporter of the ETIM, but also that the government's conclusions that the ETIM is part of the Taliban and has engaged in hostilities against the United States are based almost entirely on the government's own say-so (which in turn is likely based on unsupported representations offered by the Chinese, who are more than happy to have the United Statesimprisoning the critics of that government).
I can't do better here than quoting from "the C-Box":
The principal evidence against Parhat regarding the second and third elements of DOD's definition of enemy combatant consists of four government intelligence documents. The documents make assertions-often in haec verba-about activities undertaken by ETIM, and about that organization's relationship to al Qaida and the Taliban. The documents repeatedly describe those activities and relationships as having "reportedly" occurred, as being "said to" or "reported to" have happened, and as things that "may" be true or are "suspected of" having taken place. But in virtually every instance, the documents do not say who "reported" or "said" or "suspected" those things. Nor do they provide any of the underlying reporting upon which the documents' bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the [CSRT] could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.
The [M-Box] insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the [M-Box] says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the [M-Box] regards the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are "reported" or "said" or "suspected" to have occurred suggests at least some skepticism. Nor do we know whether the [M-Box] relies on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.
That is to say, the C-Box asked the M-Box to explain its methods, and, after taking a look, concluded that the M-Box is, well, a Ouija board. Now, remind me: Why on earth should we credit the M-Box's conclusions, especially where the liberty of persons detained for more than half a decade is at stake?
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continue reading at Balkinization ...
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Can the president indefinitely detain someone who has no connection to al-Qaida and who has not engaged in any belligerent acts against the United States?
Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version on Monday.
Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush administration's detention policy-namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the president in the conflict against al-Qaida.
Within a week after the attacks of Sept. 11, Congress authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
The administration argues that this Authorization for Use of Military Force authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.
Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al-Qaida or of the Taliban. Indeed, the Pentagon's Combatant Status Review Tribunal did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).
So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced weegur). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to "oppression and torture" by the Chinese Government, including "harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas." In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone-not the United States-as his enemy.
In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and 17 other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.
In light of all this-and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks)-what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?
Find out at Balkinization.